The Real Threat to Freedom Is Coming From the States
Across the country, we are seeing sharp new limits on the rights and privileges of Americans. And despite a national mythology that ties the threat of tyranny to the machinations of a distant, central government, the actual threat to American freedom is coming from the states.
It is states that have stripped tens of millions of American women of their right to bodily autonomy, with disastrous consequences for their lives and health. It is states that have limited the right to travel freely if it means trying to obtain an abortion. It is states that have begun a crusade against the right to express one’s gender and sexuality, under the pretext of “protecting children.” It is states that are threatening to seize the children of parents who believe their kids need gender-affirming care. And it is states that have begun to renege on the promise of free and fair elections.
That it is states, and specifically state legislatures, that are the vanguard of a repressive turn in American life shouldn’t be a surprise. Americans have a long history with various forms of sub-national authoritarianism: state and local tyrannies that sustained themselves through exclusion, violence and the political security provided by the federal structure of the American political system.
In many respects, the history of American political life is the story of the struggle to unravel those sub-national units of oppression and establish a universal and inviolable grant of political and civil rights, backed by the force of the national government.
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Viewed in this light, our time is one in which we face an organized political movement to undermine this grant of universal rights and elevate the rights of states over those of people, in order to protect and secure traditional patterns of domination and status. The only rights worth having, in this world, are those that serve this larger purpose of hierarchy.
It might seem odd to say that the story of American political life is about the struggle to establish a grant of political and civil rights. After all, we have had the Bill of Rights since its ratification in 1791. And Americans today tend to think of the Bill of Rights as a set of basic, universal rights, applicable to all within our borders and binding on both federal and state authority.
But to the extent that this is true, it is a relatively recent development in the history of American constitutional law. Before the passage and ratification of the 14th Amendment in 1868, the Bill of Rights was understood to be a limit on national authority — the federal government could not quarter troops in your home, for example, but the states could, if not limited by their own constitutions.
“The constitution was ordained and established by the people of the United States for themselves; for their own government; and not for the government of the individual states,” Chief Justice John Marshall wrote in his 1833 opinion in Barron v. Baltimore, which set the boundary between the Bill of Rights and the states:
The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments framed by different persons and for different purposes.
Not every legal scholar agreed with Marshall — four years earlier, the celebrated Philadelphia jurist William Rawle had written that the Bill of Rights “properly finds a place in the general Constitution, where it equalizes all and binds all” — but Marshall’s view essentially summed up the conventional wisdom of the early republic and became, after Barron, precedent.
Against Marshall’s precedent, however, stood the mounting sectional conflict over slavery. To suppress antislavery agitation and secure the peculiar institution within their borders, slave-state legislatures trampled over every right mentioned in the Bill of Rights. They banned the circulation of antislavery materials, banned public speech against slavery, banned religious gatherings among free and enslaved Blacks, allowed the arbitrary search and seizure of any Black person found outside the dominion of a master and mandated cruel and unusual punishments for Black people who broke these and other laws.
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Slavery made a mockery of political and civil rights for whites as well as Blacks, and to many Americans it made no sense that states could pursue such repression without raising the opposition, and intervention, of the national government.
When, after the Civil War and the abolition of slavery, the victors had their chance to further restructure the American political system, they took aim at the barrier between the Bill of Rights and the states, not the least because ex-Confederates were fighting to restore bondage in the former rebel states and would not stop unless met with the force of the Constitution itself. It’s this that gives us the second sentence of the 14th Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The point of this language — according to its principal author, John Bingham of Ohio, a Radical Republican member of the House — was to “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of right as it stands in the Constitution today.” The adoption of the 14th Amendment, Bingham explained on the House floor, would “take from the states no rights that belong to the states.” But, he said, “if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow men.”
Unfortunately, in a series of rulings culminating with Plessy v. Ferguson in 1896, the Supreme Court would narrow the scope of the 14th Amendment to the point where the Constitution’s limits on the actions of states were little different from what they were before the Civil War. “The justices,” the historian Eric Foner writes in “The Second Founding: How the Civil War and Reconstruction Remade the Constitution,” “insisted that the amendment had not significantly altered the balance of power between states and the nation, and proved unreceptive to claims that a state’s inaction in the face of violence or other expressions of racial inequality proved justification for federal intervention.”
And yet even these monumental setbacks could not erase the fact that the 14th Amendment had, as Foner writes, citing the legal scholar William J. Novak, “set in motion a process whereby rights became attributes of a national citizenship rather than a welter of local statutes, traditional practices, and common law traditions, all of them grounded in inequality.” Many of the legal and political triumphs of the 20th century involve the fight to give substance to and expand the scope of those rights. And whether victory comes through the courts or through legislation, the fights have been, in each case, the struggles of ordinary people expressed through collective, democratic action.
In doing all this, we have, against the history and tradition of this country, begun to construct a robust set of universal rights — a baseline for political and civic equality that extends to every member of the political community and that binds the states as much as it does the federal government. When scholars and other observers of the American system say that we have been a fully functioning democracy only since the 1960s, this is what they mean. This work is far from over — there remains the question of positive economic rights, which have been under assault since they emerged during the Great Depression — but we have nonetheless built a conception of citizenship that was practically unimaginable for a large part of this nation’s history.
It is exactly this triumph that conservatives and reactionaries hope to reverse. The plan, as we have seen with abortion, is to unspool and untether those rights from the Constitution. It is to shrink and degrade the very notion of national citizenship and to leave us, once again, at the total mercy of the states. It is to place fundamental questions of political freedom and bodily autonomy into the hands of our local bullies and petty tyrants, whose whims they call “freedom,” whose urge to dominate they call “liberty.”
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